Article by Andrew Ross, Associate Director and Brittany Virgili, Associate
In a first under Australian workplace health and safety laws, Gympie small business owner/Director, Mr Jeffrey Owen will spend at least 18 months behind bars after being found guilty of the industrial manslaughter of his friend who was helping Mr Owen out as a favour (highlighting the broad concept of “worker” that applies under all state and territory WHS laws).
The prosecution alleged multiple breaches of duty against Mr Owen. Most notably, the business did not have any documented health and safety procedures. Mr Owen was operating the forklift, unlicensed, at his place of business and overloaded it with a heavy generator that tipped and fatally crushed his friend who was assisting him with the task.
The indictable offence was heard before a jury in the Queensland District Court. After a four-hour deliberation, the jury found that Mr Owen (who pleaded not guilty) had caused his friend’s death by ‘negligently’ operating the forklift. The case is significant in that ‘negligence’, albeit negligence of a gross kind, was the touchstone for evaluating the guilt of Mr Owen. The Queensland District Court also heard that safe, alternative methods of unloading the generator were available at a low cost.
Mr Owen was sentenced to a five-year jail term (suspended after 18 months of actual prison time for an operational period of five years), with the maximum penalty for the offence being 20 years’ imprisonment. His Honour Judge Cash QC noted that while the deceased friend put himself in harm’s way, this did not relieve Owen of his responsibility to his friend as a ‘volunteer’ at the site.
This is the first time an individual has been prosecuted, convicted and jailed for industrial manslaughter since the offence was introduced in Queensland in 2017 under the Workplace Health and Safety Act 2011 (Qld).
Under this legislation, a corporation or an officer will be charged with industrial manslaughter if:
- a worker has died;
- the death is connected to work; and
- death occurred directly due to the corporation or officer’s negligent conduct.
The fatal incidents at Dreamworld and Eagle Farm prompted the introduction of a more direct route to company and senior officer liability (under ss 34C and 34D of the Act, respectively) in the event of death. The new offence of industrial manslaughter hinges on the concept of negligence, which is not limited by the reasonable practicability of the control measures that were missing. The reasonable practicability of control measures available to eliminate or reduce a given risk were at the core of the original model WHS laws as first introduced in participating states and territories.
The question of how ‘reasonable practicability’ fits into the content of the industrial manslaughter offence in Queensland remains contentious. Some would argue that the ‘reasonable practicability’ of a given control measure is not actually part of working out liability for the Industrial Manslaughter offence in Queensland, at least not in a direct way. Reasonable practicability might often be a useful gauge of whether culpable negligence exists, but it’s not an explicit restriction on the scope of the offence.
As we currently understand the NSW Bill (introduced by the ALP) to introduce industrial manslaughter, the drafting of that offence does not take direct account of reasonable practicability of a given control measure available to the corporate offender. Instead, the focus is on the existence and level of negligence of the corporation and its senior officers in terms of meeting the duty of care imposed.
What all of this means is that it is now more important than ever for all corporate officers and managers (not just business owners) to ensure that forward looking due diligence systems are established and reviewed regularly in order to avoid incidents and fatalities in the workplace. Meeting a health and safety duty of care and avoiding “negligence' is not a static obligation, it evolves with the technology and knowledge available to a business.
With the new government in South Australia and depending upon the colour of future governments in NSW and federally, the structure and enforcement of the industrial manslaughter offence in Queensland may become influential in those jurisdictions. The ACT, Victoria and the Northern Territory have already moved in this space.
It must be remembered that a Board member or senior officer based in NSW may face industrial manslaughter liability for an incident that occurs within the business in Queensland or Victoria. For that reason, nationally operating businesses may need to take account of the severity of the obligations in Queensland when setting the nationwide safety settings and goals for the business.
Here is an overview of industrial manslaughter laws in Australia:
ACT: A person conducting a business or undertaking (PCBU) or an officer of a PCBU commits industrial manslaughter if they engage in conduct that breaches a WHS duty and causes a person’s death. The PCBU or officer must have been reckless or negligent about causing the death. The maximum penalty is 20 years' imprisonment for an individual and a fine of approximately $17M for a company.
QLD: It is an offence for a PCBU or senior officer to negligently cause the death of a worker, including where a worker is injured carrying out work and later dies. The maximum penalty is 20 years’ imprisonment for an individual or a fine of approximately $10M for a company.
NSW: In late 2021, a Bill to introduce an industrial manslaughter offence passed the Legislative Council and is currently before the Legislative Assembly. Under the proposed legislation, a PCBU or senior officer commits the offence if a person dies at the workplace, or is injured at the workplace and later dies, and the PCBU or senior officer's conduct caused the death. The PCBU or senior officer must have engaged in the conduct without reasonable excuse and have been grossly negligent or reckless. The maximum penalty is 25 years' imprisonment for an individual and fines of approximately $10M for a company.
VIC: Industrial manslaughter offences apply where an employer negligently breaches a WHS duty owed to a worker causing death to that worker. The maximum penalty is 25 years’ imprisonment for an individual or a fine of approximately $18M for a company.
WA: The Work Health and Safety Act 2020 (WA) was passed in November 2020, bringing the state closer to the work health and safety laws in most other jurisdictions. It includes an industrial manslaughter offence, which arises when a duty holder (including officers of PCBUs in some situations) fails to comply with their health and safety duty and engages in conduct that causes the death of an individual, in the knowledge that the conduct was likely to result in death or serious harm, and in disregard of that likelihood. The maximum penalty is 20 years' imprisonment and fines of approximately $5M for an individual and a fine of approximately $10M for a company.
NT: A PCBU or an officer of a PCBU commits industrial manslaughter if they intentionally engage in conduct which breaches a health and safety duty and causes the death of an individual to whom the health and safety duty was owed. The PCBU or officer must also be reckless or negligent about the conduct breaching the health and safety duty and causing the death of that individual. The maximum penalty is imprisonment for life for an individual and a fine of approximately $10M for companies.
SA: In late 2020, a Bill to create the offence of industrial manslaughter was introduced in a Private Member's Bill. Under the Bill, an employer (or an officer of the employer) would commit the offence if they were in breach of their duty of care and their breach caused the death of a worker. They also had to be ‘recklessly indifferent’ as to whether their conduct would create a substantial risk of serious harm. However, the second reading of the Bill was adjourned and there have been no further updates on whether the Bill will be reintroduced for debate.
TAS: Industrial manslaughter is not currently an offence in Tasmania. There are no Bills before the Tasmanian Parliament to introduce an industrial manslaughter offence.
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